8 minute read
Council Member Report - Linda Lee
It is fascinating that there are estimated to be 30 million dead users on Facebook. Facebook offers a service enabling relatives to convert the page into a memorial page or marked for deletion but very few of those left behind take up either option. Even fewer will seek to remedy the situation on Twitter; they require identification and a death certificate before they will delete an account. Facebook and Instagram also offer a service whereby whilst living you can set your own preferences for what happens in the event of your death, nominating a legacy contact.
At present, the Solicitors Regulation Authority (SRA) offers no such service, though it will accept notification from a relative or colleague when a solicitor has died.
Where no such notification is received, a solicitor’s name will automatically remain on the Roll until the SRA complete a ‘keeping of the Roll’ exercise.
However, following a consultation in 2014, the annual keeping of the Roll exercise was abandoned. Up to then each solicitor who did not hold a practising certificate was asked if they wanted to stay on the Roll and if they did they were required to pay a £20 fee to remain on the Roll. If no response was received, the names were published in the Gazette before the solicitor was removed in case contact details had been lost.
Abandoning the fee was supported but failing to keep the Roll was not. Following the consultation, the SRA also considered whether it should commit to running the process at set intervals of every 3 or 5 years and concluded that it would be preferable to run the process when it deemed it necessary. It has not run such a ‘keeping of the Roll’ process since 2015.
At conferences, SRA senior executives spoke optimistically of relatives or possibly the probate registry informing the SRA when a solicitor died. At the time of the consultation in 2014, there were approximately 27,000 solicitors on the Roll without a practising certificate. As at March 2021 , there were 207, 916 solicitors on the Roll of which almost 54,000 did not have practising certificates. Whilst it is a fact that there were 167,000 solicitors in March 2015, and it could be expected that the numbers of solicitors without practising certificates would have increased, it seems likely that some of the solicitors on the current Roll are no longer with us.
The potential risks are obvious as this practice could lead to identity theft by fraudsters. Ironically the SRA’s warning notice identifies such risks, stating that there are, ‘ serious and continuing risks to the public arising from the activities of criminals and criminal gangs who set up bogus law firms or bogus branch offices of genuine law firms. This is with the intention, usually, of stealing money, personal information or data’.
The SRA have not given any indication as to when it will run the exercise again, but it is long overdue. An unexpected casualty has been the anniversary certificates sent each year by the President of the Law Society of England and Wales. I well remember writing out the individual’s name and signing the certificates and the pleasure in reading the acknowledgement letters describing a life as a solicitor and occasionally receiving that solicitor’s autobiography by way of a thank you.
If a solicitor is reaching a 50th, 60th or 70th anniversary on the Roll, they must now notify the Law Society to receive their certificate, if the anniversary has passed, it will be provided retrospectively. It is a free service.
The SRA are consulting on changes to the Minimum Terms and Conditions (MTC) for the Professional Indemnity Insurance (PII) all firms are required to have in place.
This is in response to concerns raised by the Prudential Regulation Authority (PRA) and Lloyd’s. They have drawn attention to underwriters’ risk management in relation to what is known as ‘silent cyber’ in a range of policies and not just solicitors’ PII.
Silent cyber refers to the insurer’s potential cyber exposures contained within the wording of insurance policies where they may not implicitly include or exclude cyber risk. It is sometimes also called “non-affirmative” cyber.
Unlike standalone cyber insurance, which clearly defines the parameters of cyber cover, many traditional policies are silent on risks associated with cyber and theoretically may pay claims for cyber losses in certain circumstances.
The SRA is seeking to insert a clause into MTC to make it clear what cover is in place in the event of losses caused by a cyber-attack/event.
The SRA states that its proposals should not increase the cost of PII or reduce the level of cover currently available under the current MTC but will make it clearer what is covered and what is not.
It is proposed that the new term in the MTC will read as follows:
‘The insurance may exclude, by way of an exclusion or endorsement, the liability of the insurer to indemnify any insured in respect of, or in any way in connection with:
1. a cyber act 2. a partial or total failure of any computer system 3. the receipt or transmission of malware, malicious code or similar by the insured or any other party acting on behalf of the insured 4. the failure or interruption of services relating to core infrastructure 5. a breach of Data Protection Law
provided that any such exclusion or en dorsement does not exclude or limit any liability of the insurer to indemnify any insured against: i. civil liability referred to in clause 1.1 (including the obligation to remedy a breach of the SRA Accounts Rules as described in the definition of claim ) ii. defence costs referred to in clause 1.2 iii. any award by a regulatory authority referred to in clause 1.4
In addition, any such exclusion or endorsement should not exclude or limit any liability of the insurer to indemnify any insured against matters referred to at (i) (ii) and (iii) above in circumstances where automated technology has been utilised.”
It is thought that such policies would exclude losses incurred by a firm following a cyber-attack such as: • cost of experts to advise a firm on recovering systems, restoring files or managing the crisis, cost of PR Consultants to limit reputational damage or experts to advise clients • Business interruption cover resulting loss of profits • cost of any regulatory investigations and any fines arising
It is intended that firms would then be able to take out separate cover to reimburse such costs.
Changing the MTC is fraught with difficulties. If this cyber-attack cover for firms came within the MTC, all firms would effectively make a payment for this and it is likely that the cost of MTC cover would increase. It might also be harder for some firms to obtain MTC cover because of a risk profile in relation to cyber-attacks and this could force them to close. Adding explicit cyber cover into the MTC would also not find favour with existing insurers in the market.
Rferences:
i) https://www.sra.org.uk/globalassets/documents/sra/consultations/annual-keepingroll-response.pdf?version=4a1ac1
ii) https://www.sra.org.uk/solicitor-population On the other hand, if the whole market is buying cover of this type under the MTC, the cost will be less than individual policies. Many firms may well find that they are unable to purchase stand-alone cyber-attack cover at a reasonable price or at all.
For those wishing to respond, the consultation period ends on 25 May 2021.
Any top up cover may well operate different exclusions and it would be prudent for firms to consider their needs and then discuss with their brokers what cover they have in place in the event of a cyber-attack. If additional insurance is required, it will be necessary to carry out a thorough to review of their policies and operating procedures generally.
Finally, one of my earliest articles in the Law Society Gazette in the 1990s was a plea not to increase the small claims limit to £5,000 for personal injury cases. The limit was not increased then, (though I do not claim my article played any part in persuading) as the unfairness to injured persons who would be unrepresented was obvious. I watched with increasing concern the plans to launch the Official Injury Claim (OIC) portal . From 31st May 2021, individuals injured in a road traffic accident will be able to use this ‘free’ service to claim compensation ‘without legal help’. In addition to navigating their way through the complexities of the online portal, they will also need to absorb a handy 64-page guide for, ‘unrepresented claimants (those not represented by an advisor)’ . This will explain all the injured person needs to know, if they can work their way through a long document full of complicated concepts, such as the pre-action protocol and the value of a claim, described in dense legal jargon. The injured person will also have to familiarise themselves with the snappily titled, accompanying ‘Guide to changes to the Small Claims Limit for Injury Claims (Referring to Part 26 of the Civil Procedure Rules)’ and the ‘Guide to Practice Direction 27B’.
It seems likely that some injured people will fail to make a claim at all and others will be compelled to pay solicitors or unregulated persons to assist them to navigate the system. More worryingly there will be some who go it alone and risk under settling their claims. It is hard to see how these plans fit or even less fulfil the Legal Services Board plans to ‘re-shape the legal sector’ over its concerns that, ‘the basic legal needs of many in society are still not being met’.
Linda Lee
Council Member
iii) https://www.sra.org.uk/solicitors/guidance/bogus-law-firms-identity-theft
iv) https://www.lawsociety.org.uk/membership/anniversary-certificates-for-solicitors
vv) https://www.sra.org.uk/sra/consultations/consultation-listing/pii-cyber
vi) https://www.officialinjuryclaim.org.uk
vii) https://www.officialinjuryclaim.org.uk/media/1157/guide-to-making-a-claimversion-20-april-2021.pdf
viii) Section 1.2 ibid
ix) https://www.officialinjuryclaim.org.uk/media/1155/guide-to-part-26-of-the-civilprocedure-rules.pdf
x) https://www.officialinjuryclaim.org.uk/media/1156/guide-to-practice-direction-27b.pdf
xi) https://legalservicesboard.org.uk/news/ten-year-report-reveals-that-the-basiclegal-needs-of-many-in-society-are-still-not-being-met
